BY ELECTRONIC MAIL DELIVERY 

Office of General Counsel 

Attn: Lindsay Bird, Esq. and Robert Knop, Esq. 

Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

Re: Advisory Opinion Request 2023-06 

Dear Ms. Bird and Mr. Knop: 

We answer your supplemental questions below. 

1. What is the requestor’s position as to whether the Paid Canvass, even if not a

“coordinated communication” under 11 CFR 109.21, is nonetheless an in-kind

contribution under 11 CFR 109.20(b)?

Because the Paid Canvass is a communication and because communications are not covered by 

11 C.F.R. § 109.20(b), the Paid Canvass is not an in-kind contribution under 11 C.F.R. § 

109.20(b). 

Eighty years ago, in Martin v. City of Struthers, the U.S. Supreme Court recognized that door-todoor canvasses are communications protected by the First Amendment. Writing for the majority, 

Justice Black observed that “as every person acquainted with political life knows, door to door 

campaigning is one of the most accepted techniques of seeking popular support.”1 Justice Black 

noted that “[w]hile door to door distributers of literature may be either a nuisance or a blind for 

criminal activities, they may also be useful members of society engaged in the dissemination of 

ideas in accordance with the best tradition of free discussion. The widespread use of this method 

of communication by many groups espousing various causes attests its major importance.”2

 In 

fact, TMP stipulates that the Paid Canvass “will not have non-communicative components; for 

example, [it] will not include offers to drive voters to polling places.”3 

Therefore, the Paid Canvass is a communication. Section 109.21 of the Federal Election 

Commission’s (“FEC” or “Commission”) regulations prescribes when a communication (such as 

the Paid Canvass) is a “coordinated communication” and, therefore, an in-kind contribution. For 

1 Martin v. City of Struthers, 319 U.S. 141, 146 (1943). 2 Id. at 145 (emphasis added). 3 Request by Texas Majority PAC, FEC Adv. Op. 2023-06 (Texas Majority PAC) at 2 (Sept. 12, 2023). 

250 Massachusets Ave NW, Suite 400 | Washington, DC 20001

Received by OGC on Sept. 30, 2023
the reasons set forth in TMP’s request, the Paid Canvass is not a “coordinated communication” 

and therefore not an in-kind contribution under section 109.21.

In a comment, the Campaign Legal Center (“CLC”) contends that the Paid Canvass is 

nonetheless an in-kind contribution under a separate regulation, 11 C.F.R. § 109.20(b). But 

when the Commission promulgated its coordination regulations twenty years ago, it foreclosed

the argument that CLC advances today. The Commission’s Explanation and Justification from 

2003 explicitly states that section 109.20 “addresses expenditures that are not made for 

communications but that are coordinated with a candidate, authorized committee, or political 

party committee.”4 As then-Commissioner Lenhard correctly observed in a 2007 matter 

involving a paid canvass: “if 109.20 were read to apply to communications it would render 

meaningless the Commission’s coordinated communications and party coordinated 

communications at 11 CFR 109.21 and 109.37.”5 And the U.S. Supreme Court has “cautioned 

against reading a text in a way that makes part of it redundant.”6

Consistent with the Commission’s 2003 directive and standard canons of textual interpretation, 

the Office of General Counsel (“OGC”) has consistently opined that a communication qualifies 

as an in-kind contribution only if it meets the three-prong test set forth in section 109.21 and, as a 

matter of law, communications are not in-kind contributions under section 109.20.

7 Some 

prominent examples:

• In 2009, the OGC expressly stated that section 109.20 “applies only to those coordinated 

expenditures which are not made for communications” and “[a]ccordingly . . . is 

inapplicable” to a communication.8 The Commission dismissed the complaint.9

• In 2016, the OGC considered a complaint alleging that Facebook posts constituted inkind contributions to a campaign committee. The OGC rejected the application of 11 

C.F.R. § 109.20(b): “The Complaint alleges that the Facebook communications were 

coordinated pursuant to 11 C.F.R § 109.20(b). As noted, that regulation applies to 

expenditures that are not communications.”10 The Commission dismissed the 

complaint.11

• In 2019, the OGC wrote that “[u]nder Commission regulations, expenditures for 

4 Coordinated and Independent Expenditures, 68 Fed. Reg. 421, 425 (Jan. 3, 2023) (emphasis added).

5 Statement of Reasons of Commissioner Robert D. Lenhard at 4 n.5, MUR 5564 (Alaska Democratic Party, et al.)

(Dec. 31, 2007). 6 Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669, 127 S. Ct. 2518, 2536, 168 L. Ed. 2d 467 

(2007). 7 See First Gen. Counsel’s Rpt., MUR 6477 (Right Turn USA, et al.) (Dec. 27, 2011); First Gen. Counsel’s Rpt., 

MUR 6502 (Nebraska Democratic Party, et al.) (May 17, 2012); First Gen. Counsel’s Rpt., MUR 6522 (Lisa 

Wilson-Foley for Congress, et al.) (Feb. 5, 2013); First Gen. Counsel’s Rpt., MUR 6657 (Akin for Senate, et al.)

(May 6, 2013); First Gen. Counsel’s Rpt., MUR 6722 (House Majority PAC, et al.) (Aug. 6, 2013); First Gen. 

Counsel’s Rpt., MUR 7268 (Russian Federation, et al.) (Feb. 23, 2021). 8 First Gen. Counsel’s Rpt. at 13, MUR 6037 (Oregon Democratic Party, et al.) (Sept. 17, 2009). 9 Notification to Democratic Party of Oregon & Laura Calvo, MUR 6037 (Oregon Democratic Party, et al.) (Nov. 24, 

2009). 10 First Gen. Counsel’s Rpt. at 12 n.38, MUR 7080 (Public Integrity Alliance) (Dec. 15, 2016). 11 Notification to Public Integrity Alliance, MUR 7080 (Public Integrity Alliance) (Oct. 30, 2017).
‘coordinated communications’ are addressed under a three-prong test at 11 C.F.R. § 

109.21 and other coordinated expenditures are addressed under 11 C.F.R. § 109.20(b). 

The Commission has explained that section 109.20(b) applies to ‘expenditures that are 

not made for communications but that are coordinated with a candidate, authorized 

committee, or political party committee.’”12 The Commission dismissed the complaint.13

• In 2020, in a matter also concerning Facebook posts, the OGC concluded that section 

109.20 applied only to an expenditure “for something other than a communication.”14

The Commission dismissed the complaint.15

• In 2021, the OGC assessed whether Twitter had made in-kind contributions to a 

candidate committee, both in the form of expenditures for communications and 

expenditures that were unrelated to communications. The OGC exclusively applied 

section 109.21 to the communications and section 109.20 to the expenditures that were 

not communications, opining that “a communication is considered coordinated and thus 

treated as an in-kind contribution when it is: (1) paid for by a third-party; (2) satisfies one 

of five content standards; and (3) satisfies one of five conduct standards [under section 

109.21(a)],” whereas section 109.20 applied to any payments that “were not made for 

communications.”16 The Commission dismissed the complaint.17

• In another 2021 matter, the OGC reiterated that “section 109.20(b) applies to 

‘expenditures that are not made for communications but that are coordinated with a 

candidate, authorized committee, or political party committee.’”18 The Commission 

dismissed the complaint.19

• In another 2021 matter, the OGC applied 11 C.F.R. § 109.21 to assess whether certain 

advertisements constituted an in-kind contribution, noting that “[e]xpenditures for 

‘coordinated communications’ are addressed under a three-prong test at 11 C.F.R. § 

109.21 and other coordinated expenditures are addressed under 11 C.F.R. § 109.20(b). 

The Commission has explained that section 109.20(b) applies to ‘expenditures that are 

not made for communications but that are coordinated with a candidate, authorized 

committee, or political party committee.’”20 The Commission dismissed the complaint.

21

12 First Gen. Counsel’s Rpt. at 6, MUR 7521 (Swing Left, et al.) (Oct. 30, 2019); see also First Gen. Counsel’s Rpt. 

at 6, MUR 7654 (America First Action, et al.) (Aug. 7, 2020). 13 Notification to Swing Left, MUR 7521 (Swing Left, et al.) (Oct. 6, 2021). 14 First Gen. Counsel’s Rpt. at 9, MUR 7641 (Facebook, Inc.) (Feb. 14, 2020) 15 Notification with Factual & Legal Analysis MUR 7641 (Facebook, Inc.) (Feb. 4, 2022). 16 Notification with Factual & Legal Analysis at 11, 18, MUR 7821 (Twitter, Inc., et al) (Aug 16, 2021) (internal 

quotation marks omitted). 17 Notification with Factual & Legal Analysis, MUR 7821 (Twitter, Inc., et al) (Aug. 16, 2021). 18 First Gen. Counsel’s Rpt. at 63-64, MUR 7274 (Internet Research Agency) (Feb. 23, 2021); see also First Gen. 

Counsel’s Rpt. at 16, MUR 7834 (Facebook, Inc., et al.) (Aug. 11, 2021); First Gen. Counsel’s Rpt. at 29 n.107, MUR 

7313 (Michael D. Cohen, et al.) (Dec. 7, 2020); First Gen. Counsel’s Rpt. at 11, MUR 7497 (National Rifle 

Association of America Political Victory Fund, et al.) (May 10, 2019); First Gen. Counsel’s Rpt. at 63-64, MUR 

7623 (Donald J. Trump, et al.) (Feb. 23, 2021). 19 Notification to Internet Research Agency, MUR 7274 (Internet Research Agency) (Aug. 18, 2021). 20 First Gen. Counsel’s Rpt. at 18, MUR 7853 (Lance Harris, et al.) (Aug. 31, 2021). 21 Certification, MUR 7853 (Lance Harris, et al.) (May 16, 2022).
• And earlier this year, OGC explained that “[w]e have analyzed this web posting under 11 

C.F.R. § 109.21 (concerning coordinated communications), rather than 11 C.F.R. § 

109.20(b) (concerning coordinated expenditures generally) because this web posting is a 

communication of the type contemplated by § 109.21.”22 The Commission dismissed the 

complaint.

23

The Commission has taken the same approach in advisory opinions. In a 2011 advisory opinion, 

the Commission applied section 109.21 to determine that a sponsor’s “website and email 

communications to the general public soliciting contributions to certain Federal candidates will 

not result in in-kind contributions to those Federal candidates, because the communications will 

not be ‘coordinated communications’ under the Act and Commission regulations.”24 In its 

analysis, the Commission noted that section 109.20(b) governed only those expenditures not 

made for communications.25 The Commission took the same approach in a 2022 advisory 

opinion and applied section 109.21 to determine that communications that “do not satisfy the 

content prong of the coordinated communications test . . . are not in-kind contributions.”26

It is rare for the Commission to have spoken so clearly and consistently for two decades. And it 

is equally notable that CLC’s comment does not cite a single Commission precedent or statement

in support of its argument. No advisory opinions. No MURs. No Explanations and Justifications. 

Not one. It simply repeats the text of a regulation that the Commission has repeatedly said does 

not apply to communications. 

The law here is straightforward: communications are governed solely by section 109.21; 

communications cannot, as matter of law, qualify as in-kind contributions under section 109.20. 

Absent a new rulemaking, “[a] policy of such longstanding agency acceptance” should not be 

changed.27

2. Can the requestor confirm whether the Paid Canvass will include the dissemination, 

distribution, or republication of federal candidate campaign materials under 11 

CFR 109.23?

The Paid Canvass will not include the dissemination, distribution, or republication of federal 

candidate campaign materials under 11 C.F.R. § 109.23.

3. Does TMP anticipate that the Paid Canvass will reach more than 500 homes within 

any 30-day period?

22 First Gen. Counsel’s Rpt. at 8 n.29, MUR 8056 (Bob Healey for Congress, et al.) (May 16, 2023). 23 Notification with Factual & Legal Analysis to Robert Healey, Jr., Bob Healey for Congress & Ronald R. Gravino, 

MUR 8056 (Bob Healey for Congress, et al.) (July 18, 2023). 24 FEC Adv. Op. 2011-14 (Utah Bankers Association) at 4 (Sept. 22, 2011). 25 Id. at 4 n.3. 26 FEC Adv. Op. 2022-20 (Maggie for NH) at 5 (Oct. 4, 2022). 27 Concurring Statement Of Vice Chair Caroline C. Hunter And Commissioners Lee E. Goodman And Matthew S. 

Petersen, FEC Adv. Op. 2016-21 (Great America PAC) at 2 (Jan. 12, 2017) (citing FCC v. Fox Television Stations, 

Inc., 132 S. Ct. 2307, 2315-16 (2012)).
TMP anticipates that the Paid Canvass will reach more than 500 homes within a 30-day period.

4. Does TMP anticipate that the scripts that the individual canvasser will read to the 

voters will be of an identical or substantially similar nature?

TMP anticipates that multiple written scripts would be used as part of the Paid Canvass; 

however, each script would be associated with at least 500 homes.

5. Will the individual canvasser have discretion to deviate from the script? If so, within 

what boundaries (if any)?

Yes. Canvassers are generally encouraged to have personalized discussions with voters. TMP 

would ask canvassers to emphasize one or more of the issues or message points on the written 

script but would also encourage canvassers to personalize that message in a way that resonates 

with individual voters. In addition, TMP would encourage canvassers to respond to voters’ 

questions or concerns, which will differ based on the individual voter.

6. Will the Paid Canvass be limited to the homes of individuals who have opted-in or 

otherwise sought out a visit by the canvassers?

No. But in circumstances where there is no intermediary between the speaker and the voter – as 

is the case with paid canvassing, a worker handing out leaflets on a street corner, or a 

compensated speaker giving speeches on soapbox squares around the state – the voter may 

simply refuse to allow the speaker to deliver the message. The voter may do so by putting up a 

“no trespass” sign or asking the canvasser to leave, walking past the leafleteer, or avoiding the 

part of town where the speaker stands atop the soapbox, respectively.

In Martin v. City of Struthers, Justice Black – the stalwart defender of free speech – conceded 

that local regulations typically “leave[] the decision as to whether distributers of literature may 

lawfully call at a home where it belongs – with the homeowner himself.”28 Courts have held that 

canvassers “have a First Amendment right to engage in door-to-door outreach until they are 

legitimately turned away by the property owners or residents.”29 Likewise, “a city can enforce its 

trespass law against solicitors who enter or remain on private property after the owner has 

indicated the solicitor is not welcome. [The city] has already provided that a homeowner can bar 

all solicitors by posting a sign, or any particular solicitor at any time by asking the solicitor to 

leave.”30 It is ultimately up to the voters, in other words, whether they wish to receive the 

message from the speaker.

28 Martin, 319 U.S. at 148. 29 Rivero v. Montgomery Cnty., 259 F. Supp. 3d 334, 348 (D. Md. 2017), appeal dismissed, No. 17-1730, 2017 WL 

6350583 (4th Cir. Nov. 9, 2017) (emphasis added). 30 See City of Watseka v. Illinois Pub. Action Council, 796 F.2d 1547, 1557 (7th Cir. 1986), aff'd, 479 U.S. 1048 (1987)

(citation omitted) (emphasis added).